Friday, October 22, 2010

That's Just Crazy Talk

Another topic Mary, Marci, and I discussed at lunch was how loony the rhetoric is getting in the foreclosure mess, from all sides.

First, an example from the lender side. I realize that the Wall Street Journal is little more Rupert Murdoch's gift of an in-house organ for the banks and the brokerages, but even by that low standard, Robbie Whelan's column yesterday is a high in low. He basically blames the whole fiasco on lawyers who dare to defend homeowners and demand that banks actually produce evidence to support their claims before they take someone's house away. Even by Wall Street standards, such a claim takes a lot of chutzpah, since the claimant has to ignore all the lender fraud we're finding shot through the system. This claim might actually surpass the lie the banks originally spun to us (A lie that our wholly owned Treasury Department and regulatory agencies continue to treat as reality.) that the mess was the result of those nasty, greedy borrowers and that banks were just victims (sniff, sob, sad-puppy-dog-eyes). I think the new shovel-load surpasses the old simply because the banksters are now so desperate they're trying to blame the one, remaining profession capable of punching them square in the mouth: we eminently killable lawyers. That's desperation to the point of madness.

As an aside, the "blame it on the borrower" line has recently had another hole blown in it, hopefully below the water line. Professors Adam Levitin or Georgetown and Susan Wachter of Penn recently published a paper showing that the credit bubble was largely generated by excessive supply of capital, with the demand being ginned up by ruthless marketing to provide a place to dump the supply (and generate lots of commissions and fees).

The borrower side has its own dubious tales, but at least someone who's about to be thrown into the street has an excuse for desperation verging on madness. Nevertheless, I consider it better to plan from within reality, so here goes.

Perhaps the most popular Kool-Aid tale on the borrower side is that this mess is so big that mortgages will be canceled and people will keep their houses for free. There are a lot of scam artists, some of them lawyers, encouraging this belief. I'm here to discourage it. With extreme prejudice. The mere fact that your lender securitized your loan no more invalidates your note and mortgage than a commercial landlord's pledging a rent stream as collateral for a loan invalidates the lease. Sorry. The mere fact that those securitization parties hedged their positions with credit default swaps that were train wrecks from the start has no effect on the validity of your loan either. Sorry again. And the mere fact MERS can't produce your note doesn't mean there isn't somebody out there who actually holds it and who will one day come knocking on your door. Sorry a third time. And what I tell you three times....

To sum up, lenders can't blame borrowers for their own mistakes, and borrowers can't ignore payments and expect to keep collateral. There's a new Harry Potter movie coming out, but the magic wands don't work on this side of the screen.

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About Me

I am an attorney licensed in Washington and Utah, and I keep track of real estate and business law in the Rockies and on the West Coast in general. Real estate law these days goes far beyond owning dirt and building things on it, and business is about more than hanging out an "OPEN" sign. They're about management, employment law, insurance, and lots and lots of regulatory compliance. Stop at my Spots, and we'll see if we can sort things out.

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Knute Rife has made this blog and the materials on it available to the general public for informational purposes only. The information provided is not legal opinion or legal advice. This information is not intended to create, and the receipt or viewing of it does not create or constitute, an attorney-client relationship. No one should act upon this information without seeking professional counsel.